Date: 20101207
Docket: IMM-714-10
Citation: 2010 FC 1240
Ottawa, Ontario, December 7,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CAROLINE
AJOKE AWOLAJA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, R.S.C. 1985, C. 1-2 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 7 January 2010 (Decision), which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Nigeria. She, her husband and
their children lived in the city of Ikorodu in Lagos State, where she
was employed as a registered nurse. The Applicant alleges that her husband
became a member of the Democratic Alternative Party, which frequently clashed
with the more popular Advance Party.
[3]
According
to the Applicant, her husband disappeared in March 2004 after “community heads”
accused him of involvement in political election violence and of murdering a
well-known person in the community. The Applicant says that she was approached
by community people, who believed she knew her husband’s whereabouts. Feeling
threatened, she hid her children and travelled alone to England the following
month.
[4]
The
Applicant visited Nigeria in October 2005 upon the death of her son due
to food poisoning. While there, she officially resigned from her position at
the hospital where she had formerly been employed. One month later, she returned
to England. The
Applicant did not claim asylum in England. She remained there until
May 2007, when she entered Canada under a false passport and claimed
protection as a Convention refugee or a person in need of protection.
[5]
The
Applicant appeared before the RPD in November 2009. Her claim was based on: (a)
a well-founded fear of persecution as the wife of a politically active man; (b)
the likelihood that she would face a risk of cruel and unusual treatment or a
risk to her life if she were to return to Nigeria; and (c) an
inability to live safely in another part of Nigeria.
[6]
The
RPD rejected her claim in its Decision of 7 January 2010. This is the decision
that is subject to judicial review.
DECISION UNDER REVIEW
[7]
In
its Decision of 7 January 2010, the RPD made a general finding that pivotal
aspects of the Applicant’s claims were neither credible nor supported by the
documentary evidence.
[8]
Specifically,
the RPD found that the Applicant had failed to establish, on a balance of
probabilities, that her husband was targeted because of his political
affiliations and that, by extension, she was targeted as his wife. The RPD
identified four inconsistencies in the Applicant’s evidence.
[9]
First,
the Applicant said in her Port of Entry (POE) interview that she left Nigeria because she feared
community members. At the hearing, however, she added that she feared the
repercussions of her husband’s political activities. The only explanation she
could offer for this change of position is that she did not think to mention
her husband’s political involvement in the POE interview. The RPD drew a
negative credibility inference from this omission because “the nexus of the
claim is that her husband was a member of a political party involved in
election violence.” Given the Applicant’s education and what the RPD considered
her “high level of professional status,” it was unreasonable and evasive for
the Applicant to respond to questions about the source of her fear by simply
repeating that she felt threatened by the community members who had accused her
husband of murder. The RPD expected that the Applicant should “be able to, at a
minimum, speak of her husband’s political activities coherently.” The RPD claimed that
it took into account the Chairperson’s Guidelines on Women Refugee Claimants
Fearing Gender-related Persecution in assessing the credibility of the Applicant’s
testimony.
[10]
Second,
in her Personal Information Form (PIF), the Applicant said that her husband
joined the Democratic Alternative Party in 1991, whereas at the hearing she
said that he joined between 2000 and 2001. She could offer no explanation for
these inconsistent dates.
[11]
Third,
in her PIF, the Applicant said that community members came to her house looking
for her husband on one occasion, in March 2004. At the hearing, the Applicant
said they came to the house three times. The RPD found that, at the hearing,
the Applicant embellished this aspect of her claim. It found no credible
evidence that anyone came looking for her husband or that he abandoned the
family because he felt he had to flee the community or because he was being
pursued by community members.
[12]
Fourth,
at the hearing, the Applicant asserted that community members murdered her son
because of her husband’s political involvement. However, the Applicant had not
mentioned this in her POE interview. Moreover, there is no credible evidence
that her son’s poisoning was in any way related to her husband’s political
affiliations, or that it demonstrated that she needed protection.
[13]
In
addition to the negative credibility findings, the RPD gave “substantial
weight” to the Applicant’s failure to establish, on a balance of probabilities,
that she had a subjective fear of persecution that was well-founded “when
objectively assessed in the context of country conditions.” This is what is
required under section 96 of the Act. The RPD concluded that, if the Applicant
was in fear, she would not have returned to Nigeria for a month.
It rejected her testimony that she was “in hiding” in Nigeria: a person in
hiding would not “tak[e] care of business matters” such as officially resigning
from her job. Her answers regarding her other activities while visiting Nigeria were “evasive
and vague.”
[14]
Also,
the Applicant could not establish a “serious possibility” that she would be
persecuted if she returned to Nigeria. She could not explain
why community members would want to harm her, given that her husband had been
gone for six years and that her daughters and her husband’s parents had all
been living safely in Nigeria. Alternatively, even if
the RPD were to accept the Applicant’s testimony to be credible, it concluded
that she still had a reasonable IFA. The onus was on the Applicant to provide “clear
and convincing evidence” that there was a serious possibility that she would be
persecuted if she returned to a new location in Nigeria. Any problem
that the Applicant might have in Nigeria is localized to one
part of Lagos. Therefore
she could reasonably relocate to another part, particularly given her education
and work experience.
[15]
Finally,
the RPD drew a negative inference from the Applicant’s failure to seek asylum at
the earliest opportunity while she was living in England. Her
explanation that her passport was stolen, that she was unable to obtain another
and that she was focused only on getting her children to England was not accepted.
[16]
In
the RPD’s view, the death of the Applicant’s son, her separation from her
daughters and the disappearance of her husband, all of which were discussed in
the psychological reports before the RPD, could certainly explain why she was
depressed and “psychologically fragile.” However, such misfortunes do not
constitute torture under section 96 or section 97 of the Act.
[17]
Therefore,
based on a general negative credibility finding as well as her failure to meet
the criteria of sections 96 and 97 of the Act, the RPD rejected the Applicant’s
claim.
ISSUES
[18]
The
issues are as follows:
a. Whether the
RPD based its decision on an erroneous finding of fact, which was made in a
perverse or capricious manner or without regard to the material before it;
b. Whether the
RPD breached the principles of natural justice in reaching its negative
decision.
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need of protection is
a person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed
by the regulations as being in need of protection is also a person in need of
protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger
la personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement
pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne
qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[20]
The Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to the particular question before the court is well-settled
by past jurisprudence, the reviewing court may adopt that standard of review.
Only where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[21]
The issue of
whether the RPD based its decision on an erroneous finding of fact is a factual
issue. Accordingly, it will be reviewed on a standard of reasonableness. See Dunsmuir,
above, at paragraph 64.
[22]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir,
above, at paragraph 47. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[23]
The Applicant also alleges that the RPD breached principles of
natural justice. A standard of correctness is the appropriate standard for the
review of issues involving procedural fairness and
natural justice. See Sketchley v. Canada (Attorney General), 2005 FCA 404, 263
D.L.R. (4th) 113 at paragraph 46; and
Dunsmuir, above, at paragraphs 126 and
129. Therefore, correctness is the standard to be used when considering whether
the RPD breached procedural fairness in making this decision.
ARGUMENTS
The
Applicant
RPD
Made Erroneous and Perverse Findings of Fact
[24]
The
Applicant submits that the RPD erred and acted in a perverse manner by
accepting that the Applicant’s spouse disappeared and that her son died while,
at the same time, refusing to accept her explanation of the circumstances
surrounding those events—that is, that her husband fled for political reasons
and that her child was deliberately poisoned by community members. The RPD had
no reason to disbelieve her explanation and there was no evidence to contradict
her.
[25]
The
RPD’s finding
that the Applicant returned to Nigeria in 2005 to resign from
her nursing position was directly contrary to the Applicant’s own evidence.
[26]
The
RPD failed to acknowledge the documentary evidence concerning the abuse of
women and the violence against women in Nigeria.
[27]
The
RPD erred when
it attached little weight to the psychological report, particularly given its
conclusion that the Applicant might be emotionally traumatized. The RPD
attributed her emotional torture and trauma to physical torture and trauma.
[28]
The
RPD erred in
concluding that the Applicant was evasive during the hearing. Had the RPD
applied the Gender Guidelines, instead of refusing to do so, the RPD would have
understood the Applicant’s demeanour and responses as indicating emotional
trauma and not evasiveness. The RPD also erred in focusing on the Applicant’s
education and professional achievements in its assessment of her emotional
state of mind.
[29]
The
Applicant submits that the RPD erred and acted in a perverse manner by
concluding that the Applicant did not tell the POE immigration officers about
the way her son was killed.
RPD Breached the
Principles of Natural Justice
[30]
The
RPD breached the principles of natural justice in concluding that the Applicant
has a viable IFA. The Applicant is a trained nurse. If she were to work as a
nurse in Nigeria, she would
have to work in a public place and her identity would be revealed on her name
tag. Consequently, it would be easy for those seeking her to find her.
[31]
The
RPD acted
unfairly by attaching little weight to the psychological report, even though
the RPD acknowledged that the Applicant was emotionally depressed and
psychologically fragile. The RPD was also unfair in concluding that the
Applicant’s responses were evasive when, in fact, they were consistent with and
caused by her psychological trauma.
[32]
The
RPD acted unfairly when it concluded that the Applicant does not have a
well-founded fear of persecution, even though it accepted that the Applicant’s
“son and husband situation (sic) were credible.”
[33]
The
panel acted unfairly by contradicting the Applicant’s testimony regarding the
period during which she returned to her country of origin and the situation
regarding her resignation.
The Respondent
RPD Considered
All Evidence
[34]
The
Respondent submits that this Court must assume that the RPD has weighed and
considered all evidence, unless the Applicant can rebut that presumption. In
the instant case, the Applicant has not done so. See Florea v. Canada, [1993]
F.C.J. No. 598 (F.C.A.) (QL). That the RPD failed to
mention very document entered into evidence is no indication that those
documents were disregarded. See Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 (F.C.A.) at 318.
RPD Is Entitled
to Weigh Evidence
[35]
The
RPD decides what weight to give to the evidence and is permitted to prefer
documentary evidence over the Applicant’s oral evidence. See Zvonov v. Canada (Minister of
Employment and Immigration) (1994), 83 F.T.R. 138 at 141; Zhou v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.) (QL). In the
instant case, the Applicant has failed to prove that the RPD ignored or misconstrued
evidence or that it made its findings of fact in a capricious or perverse
manner. The Respondent submits that the Applicant simply disagrees with the RPD’s Decision
and that, in reality, there is no arguable issue upon which this judicial review
can succeed. Brar v. Canada (Minister of Employment and Immigration),
[1986] F.C.J. No. 346 (F.C.A.) (QL); Ye (Yao Cheng) v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 1233 (F.C.A.) (QL).
Applicant Had
No Subjective Fear of Persecution
[36]
The
Respondent submits that it is reasonable for the RPD to take into account the
Applicant’s failure to claim asylum in England when
assessing the credibility of the Applicant’s refugee claim in Canada and her
subjective fear of persecution should she return to Nigeria. See Heurta
v. Canada (Minister of
Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.) at 225; Heer
v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 330
(F.C.A.) (QL); Radulescu v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 589 (F.C.T.D.) (QL); Bogus v. Canada
(Minister of Citizenship and Immigration) (1993), 71 F.T.R. 260 (F.C.T.D.)
at 262, aff’d [1996] F.C.J. No. 1220 (F.C.A.) (QL).
RPD
Considered the Gender Guidelines
[37]
The
Respondent submits that the Gender Guidelines are not binding on the RPD. The Guidelines
do not relieve the Applicant of the burden of establishing her claim with
credible evidence, and they do not create a new ground for finding a person to
be a victim of persecution. However, they are to be considered in appropriate
cases, and they were considered in the instant case. The Guidelines require
the RPD to be sensitive to identified factors, which may explain the reactions
and behaviours of women in relation to certain events, particularly domestic
abuse. However, they cannot cure an otherwise deficient claim. See Fouchong
v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1727 (F.C.T.D.) at
paragraph 10.
ANALYSIS
Credibility and Subjective
Fear
[38]
At
the hearing of this matter in Toronto on 26 October 2010 counsel for the
Applicant took the Court very carefully through the record and cited examples
of where the RPD has, in its Decision, ignored material evidence,
misrepresented the Applicant’s responses to questions put to her at the hearing
and other evidence, and ignored explanations provided by the Applicant. While I
do not accept all of the Applicant’s objections to the Decision, I do think
that there are sufficient errors to render the Decision unreasonable as regards
the RPD’s credibility and subjective fear findings.
[39]
It
is unnecessary to recite here every error that occurs, but I think a few
significant examples will suffice to show the nature of the problem.
[40]
In
the Decision at paragraph 8, the RPD says that the “claimant’s sworn evidence
at the Port of Entry (POE) was that she was afraid of community members with no
mention of any political parties.” It is true that the Applicant did not
mention specific political parties but she made it clear that the threat she
faced did have a political dimension. She said at the POE “It’s a political
problem in the community in Ikorodu, where we live,” and in her declaration she
connected her coming to Canada to a community problem in her husband’s
village where the husband was accused, along with others, “of killing of one of
the villagers (sic), during the community political crisis (2004) ….” Also,
in her PIF narrative, the Applicant had explained that when her community was
preparing for the local government election in March 2004, “our community in
Ikorodu was in chaos and serious violence. Opposition party members were
involved in fights, injuries and killings.” The RPD appears to have ignored the
evidence that at the POE the Applicant did connect her fears to political
violence.
[41]
On
the other hand, there are certainly instances where the Applicant provides
contradictory evidence. An example occurs when the RPD says in paragraph 8 that
the Applicant
[t]estified at the hearing that, sometime
between 2000 and 2001, her husband joined the DAP and that he went to meetings
every month. However, in her Personal Information Form (PIF) narrative she
states that her husband joined the DAP around 1991. The claimant had no
explanation with regards to the contradictory dates between her PIF narrative
and her oral testimony.
[42]
The
Applicant argues that her answer was that she could not remember when her
husband joined the DAP. However, at page 372 of the Tribunal Record the
following exchange occurs:
i.
[Your
husband is an] [a]ctive member of what?
C. The
party. The Democratic Alternative. That is the name of the party.
M. What’s
the name of the party?
C. Democratic
Alternative.
M. What
kind of party is that?
C. AD
is a party.
M. I
know it’s a party. I’m asking you what is it? What kind of party is it? Is it a
party?
-
C. It’s
a political party.
M. Is
it a federal party or is it a local party?
C. It’s
a federal party.
M. So,
in 2000, he became a member.
C. Yeah,
he became a member.
[43]
In
her PIF narrative, at paragraphs 6, 7 and 8, it seems clear to me that the
Applicant did indicate that her husband became involved in politics with the
Democratic Alternative in the early ‘90s, so the discrepancy does exist. The
Applicant says that this discrepancy in her evidence was not put to her and she
was not given an opportunity to provide an explanation.
[44]
Justice Muldoon said in Tanase
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 32,
that the law surrounding the duty of a panel to provide an applicant with
notice of its concerns and an opportunity to explain “has yet to be settled by
this Court.” Based upon my review of the jurisprudence, I agree. Nevertheless,
the Court is not exactly divided.
[45]
While it is true that some
decisions say there is a duty and others say there is not, it seems to me that
most judges recognize expressly that their analysis is dependent on the facts
of the matter before them. My review of the jurisprudence suggests that most
judges believe there will arise situations in which the RPD should put
contradictions to the applicant because, in the particular circumstances, that
is the fair thing to do.
[46]
The Court appears to be reluctant
to describe this as the RPD’s “duty,” however. Justice Muldoon said at
paragraph 12 in Tanase, above: “[I]t should never be forgotten that federal adjudicative panels, such as the CRDD, are in the
‘business’ of fairness and justice.”
[47]
On the other hand, Justice Gibson indicated in Ayodele v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 at paragraph 17, that the
Court does not want to place an “unwarranted burden” on such panels with
respect to how they do their job. However, if in doing that job a panel chooses
not to put contradictions to the applicant, then a court may find that it has
acted unreasonably.
[48]
Cases that find a duty to put
contradictions to a claimant and to provide an opportunity for an explanation typically
rely on the Federal Court of Appeal decision in Gracielome v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 463 (FCA). In Gracielome, Justice Hugessen
observed:
In
support of its finding that the applicants were not to be believed, the
majority of the Board relied on three alleged contradictions in the evidence
given by them. Although this Court is not generally empowered to intervene in
questions that involve weighing the evidence, it is otherwise when that process
is itself based on errors of law or findings of fact that are manifestly in
error: and that is the case here….
[49]
Justice Hugessen took
each “alleged contradiction” in turn and found that the first two were not
actually contradictions—the panel had misconstrued the applicants’ evidence.
The third alleged contradiction (concerning the spelling of a name) was found
not to be the fault of the witness, who was illiterate and who gave evidence
through an interpreter. Justice Hugessen then made his now oft-quoted
observation:
It is
worth noting that in none of the three cases were the applicants confronted
with the alleged contradictions or asked for explanations. On the contrary, it
is apparent that each example was found by the majority [of the panel] after
the fact from a painstaking analysis of the transcripts of the evidence. In
these circumstances, the Board is in no better position to weigh the
contradictions than is this Court.
[50]
Although claimants have used this case as authority to argue that the
panel must put contradictions to the applicant, Justice Muldoon’s comments on Gracielome
in Tanase, above, are illuminating. He says, beginning at paragraph 13:
13 As
for Gracielome …, this has often been relied on for the propositions
advanced by the applicant. See for instance Nadesu v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1381, (IMM-4606-96, October
21, 1997) (F.C.T.D.) and Vorobieva v. Canada (Solicitor
General), [1994] F.C.J. No. 1193, (IMM-4863-93, August 15, 1994)
(F.C.T.D.). Unfortunately, Gracielome, supra has been
misinterpreted time and again by counsel.
[51]
Justice
Muldoon quotes Justice Hugessen’s well-known passage and then states as follows:
14 This passage [from
Gracielome] stands for the proposition that, where a claimant
is not confronted by a panel with alleged contradictions or asked for
explanations prior to a decision on credibility being made, the reasons for
showing deference to the panel are severely diminished as it is in no better
position to weigh the contradictions than is this Court. This proposition does
not imply, however, that the duty of fairness requires a panel to alert a claimant
to a potentially adverse credibility finding in every case or in matters of
trivial importance. The duty is strong here. Though neither party submitted
the case of Kahandani v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 1769, (IMM-2742-98, November 17, 1999)
(F.C.T.D.), this Court notes that in it, Pinard J. reaches a similar
conclusion. Also of note is Ayodele v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1833, (IMM-4812-96,
December 30, 1997) (F.C.T.D.).
[52]
Justice Muldoon’s interpretation
of Gracielome finds no duty; rather, it observes that, in the absence of
further questioning of an applicant regarding his or her contradictions, the
legitimacy of a panel’s decision is “severely diminished” because the panel has
not made a point of fleshing out the applicant’s story. It has abandoned an
opportunity to become better informed about the applicant’s claim.
[53]
Even the Court’s most firm
statements against finding a duty to put contradictions to the applicant are
usually tempered by the phrase “on the facts.” The decision relied upon by the
Respondent in the instant case is no different. In Ayodele, above,
Justice Gibsondealt with the issue as follows:
16 With great respect, at least on
the facts of matters such as this, I am not satisfied that Gracielome goes
as far as counsel for the applicant would have me find. In that decision, Mr.
Justice Hugessen wrote:
It is
worth noting that in none of the three cases were the applicants confronted
with the alleged contradictions or asked for explanations. On the contrary, it
is apparent that each example was found by the majority after the fact, from a
painstaking analysis of the transcripts of the evidence. In these
circumstances, the Board is in no better position to weigh the contradictions
than is this Court.
17 On the face of the material before me there is nothing that would indicate that here the
contradictions were uncovered by a "painstaking analysis of the
transcripts of the evidence." The hearing of this matter took place in
one, apparently rather brief, sitting. I was not able to find anything in the
certified tribunal record to indicate that the panel members relied on a
transcript. Further, the applicant was represented by counsel. I think it is
fair to assume that any contradictions in the applicant's testimony would have
been as apparent to counsel as to the CRDD members. In such specific
circumstances, to have a decision fail, by reason only of the
failure on the part of the CRDD members to put the contradictions to a
represented applicant goes well beyond what I take to be the position
enunciated in Gracielome and places what, in my view, is an unwarranted
burden on members of the CRDD. To reiterate, the Applicant was represented.
Presumably, counsel was attentive to the testimony. It was open to counsel to
examine or reexamine his or her client on any perceived inconstencies (sic)
without coaching from the CRDD members. [my emphasis]
[54]
In Ngongo v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No.
1627, Justice Tremblay-Lamer provides a summary of the jurisprudence as well as
guidelines for determining whether the RPD has erred in failing to put a
contradiction to the applicant:
13 I
note that in its decision, the panel relied on Mr. Justice Gibson's recent
decision in Ayodele v. Canada (M.C.I.). That decision limits the scope
of Gracielome v. Canada (M.E.I.) and holds that failing to put a
contradiction to a claimant is not in itself an error of law:
I
think it is fair to assume that any contradictions in the applicant's testimony
would have been as apparent to counsel as to the CRDD members. In such specific
circumstances, to have a decision fail, by reason only of the failure on the
part of the CRDD members to put the contradictions to a represented applicant
goes well beyond what I take to be the position enunciated in Gracielome
and places what, in my view, is an unwarranted burden on members of the CRDD.
To reiterate, the Applicant was represented. Presumably, counsel was attentive
to the testimony. It was open to counsel to examine or reexamine his or her
client on any perceived inconsistencies without coaching from the CRDD members.
14 More
recently in Matarage v. M.C.I., Mr. Justice Lutfy used the same
reasoning.
15 Mr.
Justice Lutfy stated that there may still be circumstances, however, where a
discrepancy should be brought to the attention of a refugee claimant. On this
point, he cited Guo v. Canada (M.C.I.).
16 In
my view, regard should be had in each case to the fact situation, the
applicable legislation and the nature of the contradictions noted. The
following factors may serve as guidelines:
1. Was
the contradiction found after a careful analysis of the transcript or recording
of the hearing, or was it obvious?
2. Was
it in answer to a direct question from the panel?
3. Was
it an actual contradiction or just a slip?
4. Was
the applicant represented by counsel, in which case counsel could have
questioned him on any contradiction?
5.
Was the applicant communicating through an interpreter? Using an interpreter
makes misunderstandings due to interpretation (and thus, contradictions) more
likely.
6.
Is the panel's decision based on a single contradiction or on a number of
contradictions or implausibilities?
17 Having regard to
these factors, I am of the view that in the case at bar, the panel was not
required to confront the claimant. This matter is proceeding in the context of
the new legislation. The contradiction was obvious and in answer to a direct
question from the panel. It did not stem from a careful analysis by a panel
seeking to justify an adverse credibility finding. It admittedly escaped the
panel's notice such that the applicant was never directly confronted over the
contradiction. However, he was represented by counsel. In my view, as in Ayodele,
the contradiction was as apparent to counsel as to the CRDD members, such that
counsel could have reexamined his client on that point.
[55]
Taking this
jurisprudence into account, I think that I have to conclude on the facts before
me, and for much the same reasons cited by Justice Tremplay-Lamer in Ngongo,
that there was no duty on the RPD to put this particular contradiction to the
Applicant and it was not unreasonable for the RPD not to do so. However, this
significant contradiction has to be weighed against other instances where, it
appears to me, the RPD has made unreasonable findings.
[56]
In
paragraph 9, the RPD refers to the Applicant’s “evasive answers with regards to
what is the core of her fear of returning to Nigeria” and her
inability to “speak of her husband’s political activities coherently.” Reading
the transcript, it is hard to see how the Applicant was evasive. She gave a
clear explanation that, because she is a woman, her husband would not be
culturally disposed to tell her in any detail about what he was doing
politically. When she was asked what she knew about the Democratic Alternative
Party, the Applicant explained these cultural issues in the following way:
I don’t know much more because I know
it’s a party. There are different party people join. Because when you have to
vote, you vote with the party you supported. I’m more like at the house taking
care of that things and my work, but he’s more involved than me because he goes
to meeting. He doesn’t – he doesn’t even discuss much, you know. No, ma’am,
they don’t discuss much about what they are doing. Even if I say, “Oh, what is
this?” What is my business sometimes –
[57]
The
RPD omitted to take into account these important cultural nuances when
assessing the Applicant’s credibility on this point.
[58]
Another
discrepancy concerns the number of times that community members and the police
came to the house looking for her husband. The Applicant had omitted in her PIF
to specify the number of times community members searched for her husband. At
the hearing she said that they came three times. The RPD determined that “the
claimant embellished her viva voce testimony and that there is no
credible evidence anyone ever came looking for her husband.”
[59]
At
page 377 of the transcript, when the RPD raises the issue of how many times
they came, the Applicant explains that in her PIF she was talking about the
first time they came but, all in all, they came three times. When the PIF is
read, there is no necessary reading that she said they came only once. She
simply said that she was afraid for her husband’s safety but was surprised to
see some of the community heads come to my house to ask for my spouse and
accused him of being involved in the fights and that he was responsible for
killing a well known person in the community. She does not say that they only
came once. There is no necessary discrepancy here and, because the RPD does not
put the issue squarely to the Applicant at the hearing, she would not even know
that the RPD might regard the matter as a discrepancy, and so would not know
that further explanation was required. In this instance, then, I think the RPD
was unreasonable not to specifically address this issue with the Applicant.
[60]
At
paragraph 11, the RPD says that the Applicant “did not state at the POE that
she believed her son was killed.” However, the Applicant’s POE declaration says:
“Since they can kill my son I am afraid of my life too ….” This kind of
oversight creates the impression that the RPD is overlooking important evidence
and relying upon discrepancies that are just not there.
[61]
In
dealing with subjective fear, the RPD refers in paragraph 12 to the Applicant’s
return to Nigeria for a month
in 2005 when her son died. The Applicant testified that it was during this trip
that she officially resigned from her job. The RPD says that the Applicant’s
testimony about this one-month period was evasive and vague and that “the
claimant’s behaviour of taking care of business matters is not in line with
someone in hiding”:
The panel finds the claimant’s return to Nigeria for a month demonstrates a
lack of subjective fear and that there is no credible evidence she was in
hiding, if she went to resign from her work at the hospital.
[62]
A
review of the transcript reveals that there is nothing evasive or vague in the
Applicant’s testimony about why she was able to return for a month:
i.
Did
anybody from your husband’s community try to contact you?
C.
They
didn’t even know I was there. I didn’t even get near there. Nobody knew I was
around, except as my friend that they knew I was coming and they sneaked the
children – they show – they bring the children for me.
[63]
So
the Applicant never went near the husband’s community. And when it came to
resigning her job, the Applicant’s evidence was that, to stay in hiding, she
had to “resign through paper (sic).” It is not readily apparent to me
why resigning in writing is in any way inconsistent with staying in hiding.
Once again, the RPD is not really dealing with the evidence before it.
[64]
At
paragraph 17, the RPD says that the Applicant “could not provide a reasonable
explanation of why the community members would want her after almost six years,
taking into account that her daughters have been living in Nigeria without being
persecuted.” The Applicant, in fact, explained that she was still a target
because the community members are still looking for her husband:
i.
So,
it’s been five years since 2004, where you say you were threatened. Why would
they be looking for you now? It’s been five years.
C.
Yes,
it was five years.
M.
The
risk has to be – in a refugee – is what you would be afraid of going back to
now, not what necessarily what happened before. So, why, after five years would
they be looking for you now?
C. Oh,
because they are still looking for my husband. My husband has not appear. And
the children tell me this, what is going on at home. Even my friend that was
there, sometimes he tell me what is going on, that they are still talking about
it. They are still looking for the money, still hearing the rumour and,
according to one of my children, communicate with me with letter and on the
phone. It made me scared and afraid.
[65]
The
Applicant also explained as follows:
i.
But
they’re after your husband, ma’am.
C.
In
Nigeria, if they
don’t see the husband, the next target is the wife.
[66]
The
Applicant also explained as follows:
C.
Because
the problem is still on. The problem is still on. It doesn’t die away,
especially it involve life. They don’t forget things like (inaudible). They
will revenge. It’s they will reven – they don’t forget anything that – this –
involve life, human being. And this man, this party, this man, (inaudible) is a
big man. He has so many political talks (inaudible). It involve life. Anything
that involve life, they, they want to revenge.
[67]
When
it came to the Applicant’s daughters, the Applicant explained that in Nigeria there are
cultural reasons why the girls would not be targeted:
C.
No.
No, they are not really after girls, you know. They know that the girls does
(inaudible) they get married and they – they would go away. They don’t keep the
family name. The girls, they don’t value much about girls. Not that they are
even going, they are changing. So, they don’t (inaudible) scared. They don’t go
to that environment at all. They don’t know where they are.
[68]
The
Applicant had also explained in her PIF that girls are not valued in Nigeria. They are
not important enough to target.
[69]
None
of this is vague or evasive, and it is certainly not unreasonable. The RPD is
simply leaving out of account what the Applicant has said.
[70]
There
are other problems along the same lines, but this is enough to convince me
that, as regards the RPD’s credibility and subjective fear findings the
Decision is unreasonable. I say this even though there were obviously some
problems with the Applicant’s evidence that were not explained and where the
RPD’s negative findings cannot be said to be unreasonable. My concern is with
the Decision as a whole. There are just too many instances of the RPD coming to
negative conclusions on the basis of evidence that it says was neither evasive
or contradictory, but which was not.
[71]
The
only other issue is whether the IFA finding is reasonable and whether it can
stand alone and cure the other problems in the Decision referred to above. The
Respondent says it can because, even if the Applicant’s testimony is believed,
the risks she faces are community-based and local. She can avoid them by going
to one of the alternative centres mentioned in the Decision.
[72]
The
Applicant does, however, provide evidence that she is afraid of a national
political organization and of the Nigerian police, all of whom are looking for
her. This aspect of her evidence is not dealt with in the Decision and, in any
event, I do not see how the RPD could reasonably deal with IFA when it has not
reasonably assessed the risks that she allegedly faces. See Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589.
[73]
All
in all, I think that it would be unsafe to allow this Decision to stand. It has
to go back for reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and returned for
reconsideration by a differently constituted RPD;
2.
There
is no question for certification.
“James
Russell”
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